| I. | Substantive International Law - First Part |
| 5. | THE UNITED NATIONS |
| 5.1. | General Questions |
¤
East Timor (Portugal v. Australia),
Judgment, I.C.J. Reports 1995, p. 90
[pp. 103-104] 30. ... Australia objects that the United Nations
resolutions regarding East Timor do not say what Portugal claims they say; that
the last resolution of the Security Council on East Timor goes back to 1976 and
the last resolution of the General Assembly to 1982, and that Portugal takes no
account of the passage of time and the developments that have taken place since
then; and that the Security Council resolutions are not resolutions which are
binding under Chapter VII of the Charter or otherwise and, moreover, that they
are not framed in mandatory terms.
31. The Court notes that the argument of Portugal under consideration rests
on the premise that the United Nations resolution, and in particular those of
the Security Council, can be read as imposing an obligation on States not to
recognize any authority on the part of Indonesia over the territory and, where
the latter is concerned, to deal only with Portugal. The Court is not persuaded,
however, that the relevant resolutions went so far.
For the two Parties, the Territory of East Timor remains a
non-self-governing territory and its people has the right to self-determination.
Moreover, the General Assembly, which reserves to itself the right to determine
the territories which have to be regarded as non-self-governing for the purposes
of the application of Chapter XI of the Charter, has treated East Timor as such
a territory. The competent subsidiary organs of the General Assembly have
continued to treat East Timor as such to this day. Furthermore, the Security
Council, in its resolutions 384 (1975) and 389 (1976) has expressly called for
respect for "the territorial integrity of East Timor as well as the
inalienable right of its people to self-determination in accordance with General
Assembly resolution 1514 (XV)".
Nor is it at issue between the Parties that the General Assembly has
expressly referred to Portugal as the "administering Power" of East
Timor in a number of the resolutions it adopted on the subject of East Timor
between 1975 and 1982, and that the Security Council has done so in its
resolution 384 (1975). The Parties do not agree, however, on the legal
implications that flow from the reference to Portugal as the administering Power
in those texts.
32. The Court finds that it cannot be inferred from the sole fact that the
above-mentioned resolutions of the General Assembly and the Security Council
refer to Portugal as the administering Power of East Timor that they intended to
establish an obligation on third States to treat exclusively with Portugal as
regards the continental shelf of East Timor.
[p. 190-191 D.O. Weeramantry] The proposition that lapse of time
wears down the binding force of resolutions needs to be viewed with
great caution. In cases where resolutions in fact impose obligations at
international law, this Court would then, in effect, be nullifying obligations
which the appropriate organ of the United Nations, properly seised of that
matter, has chosen to impose. More especially is caution required from the Court
in regard to resolutions dealing with obligations erga omnes and rights
such as self-determination which are fundamental to the international legal
system. The Court would, in the absence of compelling reasons to the contrary,
show due respect for the valid resolutions duly passed by its sister organs.
It is to be noted that Australia's argument that the resolutions of the
Security Council have fallen into desuetude cannot be accepted for a further
reason.
The argument of desuetude breaks down before the fact that the Committee of
Twenty-Four, which is the General Assembly's organ for overseeing the matter of
decolonization, has kept the East Timor question alive on its agenda year after
year. Moreover, the Committee has in its report to the General Assembly referred
to this in successive years. The Committee would not be expected to keep this
matter on their books if it is, as Australia has suggested, a dead issue.
